People v. Heine
| Decision Date | 26 April 1961 |
| Parties | , 176 N.E.2d 102 PEOPLE of the State of New York, Respondent, v. Arthur HEINE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Order affirmed.
For former opinions see 12 A.D.2d 36, 208 N.Y.S.2d 188; 17 Misc.2d 337, 186 N.Y.S.2d 721.
Irving Figowitz, Brooklyn, M. M. Goldknopf, New York City, and Sidney M. Peddy, Brooklyn, for appellant.
Edward S. Silver, Dist. Atty., Brooklyn (David Diamond, Brooklyn, of counsel), for respondent.
Order affirmed upon the opinion in the Appellate Division.
On this appeal, here by permission, we are asked to construe subdivision 5 of section 11 of the Domestic Relations Law, Consol.Laws, c. 14. The pertinent parts of section 11, entitled 'By whom a marriage must be solemnized', provide that 'No marriage shall be valid unless solemnized by either:' (1) a clergyman or minister, (2) a Mayor, Recorder, City Magistrate, Police Justice, Police Magistrate of a city, or the City Clerk, (3) a Justice or Judge of a court of record or of a municipal court, a Police Justice of a village, or a Justice of the Peace, or (4) a written contract of marriage signed by both parties and at least two witnesses, and acknowledged before a Judge of a court of record.
Subdivision 5 then provides: 'Notwithstanding any other provision of this article, a marriage shall be solemnized only by those authorized in subdivision one of this section' and by certain others, not including Justices of the Peace, 'where either of the parties is under the age of twenty-one years.'
Defendant was indicted by a Grand Jury in and for the County of Kings for the crime of bigamy (Penal Law, Consol.Laws, c. 40, § 340). The evidence before the Grand Jury revealed that on May 9, 1954 defendant, then less than 18 years of age, married one Aud Kvamli, before a minister in Brooklyn, New York. On September 4, 1955 defendant, then 19 years of age, married Marie Licciardi, before a Justice of the Peace in the Town of Stony Point, Rockland County, New York. His prior marriage never legally had been terminated.
Defendant moved in County Court to dismiss the indictment on the ground that the second marriage alleged in the indictment was void under subdivision 5 of section 11 of the Domestic Relations Law in that it was performed by a Justice of the Peace. The County Court, upon an inspection of the minutes of the Grand Jury, sustained the motion and dismissed the indictment. The Appellate Division, Second Department, unanimously reversed on the law, reinstated the indictment, and denied the motion to dismiss. Defendant appeals to this court by permission.
The County Court held that subdivision 5 of section 11 rendered absolutely invalid the purported marriage of the minor before a Justice of the Peace and, hence, that no bigamy was committed. The Appellate Division held that the section merely is directory; that 'the Legislature did not intend to invalidate a marriage performed in violation thereof' (208 N.Y.S.2d 190); and that the only effect of the violation was that the Justice of the Peace 'may have incurred a penalty' for solemnizing the marriage (see, e. g., Domestic Relations Law, § 17).
In our view, the construction of the County Court was proper and the second marriage alleged in the indictment was invalid.
Prior to 1933 section 11 provided that a marriage 'must be solemnized' by any of certain specified officials or by a written contract. In Matter of Ziegler v. P. Cassidy's Sons, 220 N.Y. 98, 115 N.E. 471, 473, we held that that statute was directory only, and not mandatory; that a marriage valid at common law was valid under the statute; and that the statute could not be construed to invalidate a marriage contract otherwise valid 'in the absence of some provision expressly declaring or necessarily implying that result'; 220 N.Y. 103, 115 N.E. 473, emphasis supplied. We there (220 N.Y. at page 104, 115 N.E. at page 473) distinguished section 11, as it then existed, from a statute declaring "that no marriages shall be valid unless they are solemnized in a prescribed manner".
In 1933 section 11 of the Domestic Relations Law was amended (L.1933, ch. 606) to change the opening words to 'No marriage shall be valid unless solemnized by either'. The authorized officials remained unchanged. That precise opening language has remained in the statute, and is found, unchanged, in section 11 in its present form.
Subdivision 5, of course, expressly states that 'Notwithstanding any other provision of this article, a marriage shall be solemnized only' by certain officials where 'either of the parties is under the age of twenty-one years.' A Justice of the Peace is not included in those specified. Under the plain meaning of the statute, the 'marriage' thus performed is invalid. The introductory clause to the section, invalidating marriages not solemnized according to the provisions of section 11, may not arbitrarily be limited to apply only to subdivisions 1 through 4 of the statute. Marriages not solemnized in accordance with subdivision 5 are equally invalid.
It is true that there is authority to the effect that the 1933 amendment was intended only to abolish common-law marriages in this State and not to invalidate marriages of minors before Justices of the Peace. Andrews v. Andrews, 166...
To continue reading
Request your trial
-
Jacob, Matter of
... ... "The adoptive family arises out of the State's concern for the best interest of the child" (People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 327, 445 N.Y.S.2d 420, 429 N.E.2d 1049). This profound concern for the child's welfare is reflected in ... Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758; People ... Page 733 ... [660 N.E.2d 414] v. Heine, 9 N.Y.2d 925, 929, 217 N.Y.S.2d 93, 176 N.E.2d 102) ... The majority concludes that "[g]iven that section 117 is open to two ... ...
-
Muessman v. Ward
...procedures to control such a basic institution as marriage. (See People v. Heine, 12 A.D.2d 36, 208 N.Y.S.2d 188, affd. 9 N.Y.2d 925, 217 N.Y.S.2d 93, 176 N.E.2d 102)." The assertion by plaintiffs that such a restriction as imposed by section 79-a of the Civil Rights Law must have a compell......
-
People v. Allen
...procedures to control such a basic institution as marriage. (See People v. Heine, 12 A.D.2d 36, 208 N.Y.S.2d 188, affd. 9 N.Y.2d 925, 217 N.Y.S.2d 93, 176 N.E.2d 102.) Since the Legislature has chosen not to give legal recognition to these relationships, we should not, in construing section......
-
Schenectady Police Benev. Ass'n v. New York State Public Employment Relations Bd.
...sustenance and transgresses the limitation on legislating under the guise of statutory construction (see, People v. Heine, 9 N.Y.2d 925, 929, 217 N.Y.S.2d 93, 176 N.E.2d 102). At the very least, New York's well-established preference for allowing such subjects to be resolved by collective b......